Infirmities that rights expert flagged in Human Security Act also in anti-terrorism bill

Kristine Joy Patag - Philstar.com
Infirmities that rights expert flagged in Human Security Act also in anti-terrorism bill
In this May 17, 2019 photo, activists denounce what they deem as state-sponsored 'red-tagging' against them during a protest rally in front of the Department of Interior and Local Government office in Quezon City.
The STAR / Boy Santos, file

MANILA, Philippines (Updated 10:55 a.m., June 19)— Potential constitutional infirmities that a rights lawyer flagged in the Human Security Act of 2007 are still found in the anti-terrorism bill, which is waiting for the president’s signature.

The Palace said that President Rodrigo Duterte is "inclined" to sign the proposed Anti-Terrorism Act of 2020 that he previously certified urgent and that seeks to repeal the HSA.

The law, enacted in 2007 and now said to be the most lenient in the world, has "glaring questions of legality," the legal expert said.

In “The Human Security Act and the IHL Law of the Philippines: Of security and insecurity”, a chapter included in “Global Anti-Terrorism Law and Policy”, the lawyer examined the compatibility of the HSA with International Humanitarian Law.

Cambridge University Press first published the book in 2005 and a second edition was released in 2012.

Presidential spokesperson Harry Roque, then-assistant professor at the University of the Philippines College of Law, was among its contributors.

Roque was also legal counsel of petitioners who fought for the revocation of the law before the Supreme Court. The petition was dismissed as the tribunal held that "possibility of abuse...does not avail to take the present petitions out of the realm of the surreal and merely imagined."

Here are some of Roque’s arguments against the HSA:

On pre-trial detention

Roque noted that "while the Constitution requires that a warrant of arrest may issue only upon the existence of 'probable cause', [under the Human Security Act] pre-trial detention, even for an indefinite period, may be issued upon ‘mere suspicion of terrorism'."

Section 18 of the HSA holds law enforcers, upon authorization by the Anti-Terrorism Council, can detain a person “suspected of a crime of terrorism or the crime of conspiracy to commit terrorism.” They must, however, bring the suspect to a proper judicial authority within three days of detention.

Legal experts and rights groups flagged the authority given to the ATC — which also exists under the anti-terrorism bill —noting also that some Cabinet officials on the council have a history of 'red-tagging', or labeling activists, rights workers, and journalists as either rebel supporters or rebels themselves.

The pre-trial detention of a suspected terrorist sans a warrant was retained in the anti-terrorism bill. The detention has been extended too, to 14 days that can, in certain circumstances, be extended another 10 days.

Integrated Bar of the Philippines national president Domingo Egon Cayosa previously pointed out that: “In our Constitution, even if the writ of habeas corpus has been suspended, in the extraordinary circumstance when there is martial law, if you are arrested, you have to be charged within three days.”

RELATED: Muslim Filipinos at most risk from anti-terrorism bill 'overreach, abuse'

On ‘vague’ definition of terrorism

While acknowledging that the HSA “intended to provide a statutory definition of ‘terrorism,’” Roque said that the law provided a definition that is “still utterly vague.”

In defining “terrorism,” the HSA listed crimes already punishable under the laws and the Revised Penal Code. People committing thos crimes “thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism.”

But Roque argued that the words “‘widespread’, ‘extraordinary’, ‘fear’, ‘panic’, and ‘ unlawful demand’” are vague and the subsequent “qualifying phrase does not really qualify at all.”

“It is quite obvious that the creation of a condition of widespread and extraordinary fear and panic among the populace depends on how a crime is sensationalized, either by the state, or by the mass media, or by anyone who wants a certain criminal conduct to be characterized as ‘terrorist,’” he wrote then.

Section 4(e) of the Senate bill defines “Terrorism,” and its qualifying phrase still contains the words “fear,” adding that the crimes are done “to intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear.”

Retired SC Senior Associate Justice Antonio Carpio on Wednesday said this provision of the proposed new terror law is “broad,” as he raised: “Anything can be fearful to society.”

He said that during the current outbreak of the highly transmissible coronavirus disease, even holding of protests — a mass gathering — may be flagged as an act that endangers “the lives of other people and that creates an atmosphere of fear.”

Part of the same section in the ant-terrorism bill also reads: “That, terrorism is defined in this Section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action and other similar exercises of civil and political rights.”

It continues that this exception only applies if those activities “are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety.”

Critics of the bill have pointed out that this provision is prone to abuse.

Recent arrests, although under different and existing laws, of people who have posted on social media about offering a reward to have the president killed have not helped to quell fears over how the government might implement the proposed anti-terrorism bill. 

On free speech

Section 7 of the Human Security Act holds that a written order from the Court of Appeals may authorize a law enforcer “to listen to, intercept and record...any communication, message, conversation, discussion, or spoken or written words between members of judicially declared and outlawed terrorist organization.”

This means the proscription —the declaration that a group is an outlawed terrorist organization — would come first before surveillance may be allowed.

But Roque flagged this and held that it “appears to infringe upon the freedom of speech and expression.”

“The HSA violates the right to free speech since any communication made by the accused may be subject to any means of interception by law enforcement agencies, thereby resulting in a chilling effect on his or her right to free speech,” he wrote.

“Under existing jurisprudence, words, owing to the constitutional commitment to the freedom of expression and a free press, must actually lead to a clear and present danger before they could be repressed by the state,” he added.

If the anti-terrorism bill will be enacted, authorized law enforcers may “secretly wiretap, overhear and listen to, intercept, screen, read surveil, record or collect...private communications.”

Surveillance is expanded as this can now be done to members of a proscribed terrorist organization, to a person charged with terrorism, or a person designated under a provision of the Terrorism Financing Prevention and Suppression Act of 2012.

The specific provision covers an identified and proscribed terrorist, and “any person, organization, association, or group of persons whose funds or property, based on probable cause are subject to seizure and sequestration,” which includes a person merely suspected of terrorism.

The National Union of Peoples’ Lawyers earlier warned that the passage of this law would mean “uninvited guests’ peering into our private spaces.”

The anti-terrorism bill has also been said to be a substitute for the repealed Anti-Subversion Law  the law that made being a communist a crime, that the Department of the Interior and Local Government wanted revived last year. 

'Inherent weakness in legal system'

Roque, in his paper, also pointed out that the HSA, and its counterpart Republic Act No. 9851 — or An Act Defining and Penalizing Crimes Against International Humanitarian Law, Genocide and other Crimes Against Humanity, Organizing Jurisdiction, Designing Special Courts, and for Related Purposes — these do not address "inherent weaknesses in the Philippine legal system which gives rise to disregard for the law in general."

Quoting UN special rapporteur on extra-legal killings Philip Alston, Roque said that the Philippines, at the time, may be "in breach of its legal obligation to protect and promote the right to life primarily because of a lack of political will to bring the perpetrators of extra-legal killings and enforced disappearances to justice."

"The prosecutors are failing in their task because of their insistence that they have no obligation to take part in the investigation of cases involving extralegal killings, the Ombudsman has been in breach of its obligation to investigate and prosecute state agents for these crimes, and the courts are also in breach because of inordinate delays in the prosecution of these cases," he also said.

"Unless these matters are addressed by the new Aquino Administration, new legislation notwithstanding, the Philippine legal system may still prove ineffective in the fight against terrorism and disregard or non enforcement of the law," Roque said. — with Jonathan de Santos

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